Information

Adult Disability Payment: consultation analysis

Our analysis of responses to the consultation on Adult Disability Payment regulations undertaken between 21 December 2020 and 15 March 2021.


Appendix A - Comments on Specific Regulations

Q2

  • Definitions provided within this regulation are still too vague and generic. Based on previous experience of the disability benefit system epilepsy has not fit into either of the categories of physical or mental function or disability.
  • Part 1, Regulation 2 (d) - In addition to prothesis, it may be appropriate to consider 'orthotics' such as specialist braces?
  • Part 1, Regulation 2. It is noted that there is reference to the Armed Forces Compensation Scheme, Armed Forces Independence Payment (AFIP) however, there is no specific reference to the War Disablement Pension Scheme (WPS), and the associated allowances: Constant Attendance Allowance (CAA) (which can also be payable within Industrial Injuries Disablement Benefit) or War Pensioners Mobility Supplement (WPMS).
  • Regulation 39 "Qualifications and Experience Necessary to Carry out Assessments" should be amended to ensure practitioners should have previously been working in the health or social care role within the five years prior to becoming a case manager/specialist advisor.
  • Draft regulations should be amended to provide a maximum 42-day period for the agency to undertake a re-determination.
  • Draft regulations should be amended to prevent repayment of overpayments in cases of official error.
  • Daily Living Activities and associated descriptors should be amended to include direct reference to psychological distress.
  • Descriptors for Mobility Activity 1: "Planning and following journeys" should urgently be redrafted to remove the exclusion of psychological distress as a means to gain points in descriptors (c), (d) and (f). The associated PIP descriptors were found unlawful and in contravention of international human rights law.
  • Option of "aids and appliances" listed in schedules 2 and 3 is too focused on physical health needs, which could discriminate against those who experience mental health problems. The schedules should be amended to take into account the way that activities, interactions, and behaviours may help someone with a mental health problem undertake daily living and mobility tasks. With regards to the description of "aids and appliances" that may help people to carry out the activities listed in the tables in schedules 2 and 3, the definition of these aids and appliances as "objects and devices" in Regulation 2 is skewed towards physical disability. It does not take into account the way that certain activities, interactions, and behaviours (such as a certain informal routine) may help someone with a mental health problem undertake the tasks listed. Of course, someone with mental health problems may want to be assessed in relation to their capacities when such routines are not being applied. But the definition still indicates the general sense in which the regulations are not geared around mental health. They could therefore be considered discriminatory in concept, and should be amended.
  • On a similar note, the connecting words in the definitions of other types of disability benefit in regulation 2 are not consistent with each other (e.g. 'in terms of' for CDP, 'under' for disability living allowance [DLA], 'in accordance with' for armed forces independence payment [AFIP] and personal independence payment [PIP]). Making them consistent in their form would avoid the reader assuming that the difference was meant to be meaningful in some way.
  • In the definition of 'aid and appliance': consider whether the definition should exclude artificial heart valves, retinal implants, hip replacements, etc.
  • Consider adding a reference to use of a stoma to subparagraph (c), to reflect the Upper Tribunal's decision in JM v SSWP (PIP) [2016] UKUT 296 (AAC).
  • The definition of 'determination' may cause difficulties. This is because that word is used elsewhere in the Regulations in a sense that is clearly not referring to a determination of entitlement, but rather in the sense used in reserved benefits - one of the building blocks that leads to an outcome decision.
  • There is no definition of 'Adult Disability Payment' (ADP). The draftsperson of the draft Child Disability Payment (CDP) regulations considered that this was necessary, so including it for the avoidance of doubt would seem to be helpful. On a similar note, the connecting words in the definitions of other types of disability benefit in regulation 2 are not consistent with each other (e.g. 'in terms of' for CDP, 'under' for disability living allowance [DLA], 'in accordance with' for armed forces independence payment [AFIP] and personal independence payment [PIP]). Making them consistent in their form would avoid the reader assuming that the difference was meant to be meaningful in some way.
  • Also, you refer to the person claiming the benefit as 'the client'. Just say person.

Q4

  • Regulation 3(5) could perhaps be made more useful to the reader as a signpost by adding 'in accordance with Part 12' at the end.
  • Part 2, Regulation 3 - It is suggested that it may be appropriate to mention in this section, as a sub paragraph, 'overlapping benefits' and provide an overview of the Armed Forces Compensation Scheme (AFCS) and the War Disablement Pension Scheme (WPS) associated allowances; War Pensioners' Mobility Supplement (WPMS) overlaps with PIP mobility supplement and thus expected to overlap with Adult Disability Payment. The rate for WPMS is higher than the rate of Adult Disability Payment so it is assumed that there is no payment of Adult Disability Payment mobility component if there is an award of War Pensioners Mobility Supplement. Constant Attendance Allowance (CAA) overlaps with PIP daily living supplement and thus expected to overlap with Adult Disability Payment. CAA has four rates and dependent on which rate has been awarded, there may be a 'top up' of PIP daily living and so it is expected Adult Disability Payment will provide the same 'top up'.

Q6

  • As they stand, the current regulations demonstrate a medical model approach in which the following definition is not compliant with a human rights based approach: 'ability to carry out the daily living and/or mobility activities is limited by their physical or mental health condition or conditions.' This definition requires to be redrawn to something like 'support may be required to overcome barriers to carrying out daily living or mobility activities.' This would also have the benefit of recognising that people often experience multiple barriers at the same time.

Q8

  • Regulation 6 - use of the word 'determined' could create confusion with 'determination of entitlement'. To avoid this, it was suggested this should be changed, with 'established' provided as a suitable option.
  • Regulation 6(4)9b) - it was suggested that this should specify that 'fatigue, pain and psychological distress' will be amongst the impacts to be considered.
  • Regulation 7 - variability between descriptors needed to be better accounted for, for example it was noted that for epilepsy the risks needed to be considered and not just the time and frequency of seizures.
  • Regulation 7 - include a duty to take into account and record the extent to which a person can undertake a specific task 'reliably'.
  • Regulation 9 - the use of "on over 50% of the days" was considered a retrograde step from Personal Independence Payment where 50% of days was sufficient to satisfy the criteria. It was suggested that this should be changed to "50% or more" or "at least 50% of the days" to avoid ambiguity and need for case law.
  • Regulation 9 - the use of the words 'required period' could be confused with 'required period condition' in Part 4. It was suggested different language was needed to avoid confusion, with 'time under consideration' suggested as an alternative.
  • Ordinary meaning of 'assistance' is not in point, because the definition is an exhaustive one, being in the form 'assistance means', rather than one that extends the ordinary meaning, which would be in the form 'assistance includes'. The important word is 'intervention'.

Q10

  • Regulations 12 and 13 - these were considered to be poorly worded, overly complicated and difficult to understand.
  • Regulation 12(b) - it was suggested this be redrafted in line with case law, i.e. that it must be constructed as 'any day of the award'.

Q12

  • Section 1G - This should be explored and defined to protect all categories of status who can reside in Scotland, and clarifying when and why some benefits do not hold the same restrictions.
  • Section 1G should be explored and defined to protect all categories of status who can reside in Scotland with cherry picking what we do and don't when some benefits do not hold the same restrictions.
  • Regulation 14 (b) - Unlike the Child Disability Payment regulations (Disability Assistance for Children and Young People in Scotland: Regulation 6) there was no definition of the common travel area.
  • Regulation 15 (3) - This was considered more restrictive than the Personal Independence Payment approach in that claims could be made in advance for Personal Independence Payment by people not yet habitually resident.
  • Regulations 18 (b) and 19(c) - There was inconsistency between different regulations.
  • The rules on temporary absence should make it clear that individuals who remain ordinarily resident in Scotland, whilst present in the rest of the UK, remain eligible for disability assistance.
  • Clear guidance is needed on defining a "genuine and sufficient link to Scotland". It was suggested this should be defined in broad terms so as not to act as a barrier to disabled people accessing the Adult Disability Payment.

Q14

  • Regulation 26, Paragraph 10 - It was suggested this should be removed as it was considered inappropriate and unrealistic to expect healthcare professionals to make any consideration of their patient's residence conditions when determining eligibility. It was felt this was an area for decision incumbent on the Scottish Ministers, not healthcare staff, and should remain this way.
  • Regulation 26, Paragraph 12 - it was noted this referred to "regulation X", so it was unclear what this provision was intended to do.
  • That the regulations in this section referred to "the assistance". It was suggested this needed to be better defined.

Q16

  • No specific changes.

Q18

  • Regulation 26(3)(b) - The intention is that the Adult Disability Payment under these rules would remain payable while the [client] is in hospital or in a hospice. It might be useful if the 'payability' (as well as entitlement) was made clear.
  • Regulation 26(3)(b) - The wording may be problematic for someone already in hospital and is applying for the Adult Disability Payment. If the intention is for people to be able to get the Adult Disability Payment in this situation, it could perhaps be clearer, either here, or in regulation 29(3).
  • Regulations 27(2)(c) and (f) and Regulation 28(2)(a)(i) and (ii) - These do not appear to apply in Scotland. It was unclear if this was a drafting error or whether the intention was that time spent in a care home or hospital in England and Wales, whilst the individual remained ordinarily resident in Scotland, counted as time spent in a care home or hospital.
  • Regulation 27(6)(d) - Replicated the wording in section 85(4) of the Welfare Reform Act 2012 (regarding Personal Independence Payment), however it was felt this did not seem relevant to these regulations.
  • Regulations 27(1) and 28(1) - It was suggested that these did not match the intended policy which was felt to be better expressed under Regulation 31(2), i.e. after 28 days, starting the day after admission, etc. It was also suggested that Regulations 27 and 28 needed to be clearly conditional on the determination of residence (as under Regulation 31), otherwise the Regulations could appear to contradict one another.
  • Regulation 29 - There was inconsistency between specified exemptions for terminally ill claimants at different parts of the regulations. It was noted that those in hospital were specifically excluded from the exceptions made at Regulation 29(4)(c) when it was felt they should be treated the same as those in a hospice. It was also suggested that this contradicted Regulation 26 which stated that those terminally ill and in hospital would be exempt from Regulation 28. One respondent suggested it would be better to say that if the client satisfies Regulation 26 then the Regulation 29 exceptions apply.
  • Regulation 30(1) - Inconsistent with earlier regulations. I.e. Regulation 2 says '"legal detention" means detention in legal custody within the meaning of section 295 of the Criminal Procedure (Scotland) Act 1995(3)' but Regulation 30(1) talks about legal detention within the UK. It was suggested that, if the intention was that an individual who remains ordinarily resident in Scotland, but who is detained in another part of the UK is covered by regulations 30(1), then the definition in Regulation 2 may need to be amended.
  • Regulation 30(5) - It was felt that there was no consistent reason why terminal illness (satisfaction of Regulation 26) was not likewise included here, in order to avoid potentially contradicting provisions.
  • Regulation 31(3) - Contained a possible drafting error which should instead say 'a period of leave from the home, hospital or from legal detention'.
  • That the 28 day rule and transferring should only take into account the transfer time if being transferred otherwise the date of departure should be the date that is accepted. It was felt that the regulations treated disabled people leaving detention differently to those leaving hospitals in terms of when the day starts to count. This may have human rights consequences in treating people differently. It was also suggested that the regulations should state that, if no charges were brought, or people were exonerated, no loss of payments should apply.
  • We welcome the provision whereby [clients] can receive a new determination when their period of residence ends without the need for them to make a fresh application (regulation 31(8)). We suggest that Ministers consider extending such provision to the other scenarios outlined in Part 8, particularly legal detention.

Q20

  • Regulation 33(3)(b) - This mentions Constant Attendance Allowance, which was believed to be in relation to the Industrial Injuries Scheme (footnote 41 was noted as being missing, so it was unclear what the intent was), however, for clarity, it was suggested this should also reflect the Constant Attendance Allowance linked to the War Disablement Pension Scheme. Additionally, it was felt that it would be appropriate to add the War Pensioners Mobility Supplement (WPMS) and Armed Forces Independent Payment as they also overlap and impact on the payment rates.
  • Regulation 33(4) - For clarity, it was suggested that this should be expanded to add Constant Attendance Allowance and War Pensioners Mobility Supplement from the War Pension Scheme as well as they are 'overlapping'.
  • Regulation 33(4) - It was suggested that a separate sub paragraph was added to allow for the possibility of a Constant Attendance Allowance 'top-up' via the Adult Disability Payment where this is appropriate, e.g. for those on a lower rate of Constant Attendance Allowance (Part Payment) through the War Disablement Pension Scheme.
  • Regulation 33(5) - This referred to Regulation 46, however, it was felt this may be an error and should refer to Regulation 45 (i.e. the Motability scheme).
  • Regulation 35 - One respondent queried how the eight-week period was identified, and what process Scottish Ministers would use to identify this date to ensure consistency across the board.
  • Regulation 35(6) - It was suggested that guidance was needed around what a 'good reason' would be, and suggested this this should be defined broadly, and include it being as a result of the symptoms/effects of the applicant's medical condition or disability.
  • Regulation 37 - It was suggested that uses the word 'must' (rather than 'may') could be used to provide clarity and avoid ambiguity.

Q22

  • To avoid unnecessary reviewing of applications such as where it has been determined that, "A person's entitlement was made in ignorance of, or by mistake as to, a material fact which existed at the time of the determination was made;" regulation 40B (iii), it would be prudent, when possible, to include [organisation] in decisions when the determination involves a person with profound and multiple learning disabilities.
  • Regulation 38 should be amended to ensure that mental health-focused ADP assessors have two years' experience of mental health-related health and social care delivery within the last five years. Scottish Government should ensure a decent level of mental health training for all ADP assessors whether they are dealing with mental health-oriented applications or not, including training on stigma and discrimination.
  • We suggest that changing the criteria within Part 11, r38 (a) from 'cumulative' to 'continuous' may be advantageous or alternatively specifying a cap on the period of time over which cumulative experience could have been gained. We would also suggest that there be some inclusion of values based criteria for assessors, such as an understanding of the social model of disability and of the right to independent living as set out in the UNCRPD.
  • The word 'practitioner' is too vague when dealing with someone who has severe mental illness.
  • The Scottish Government's Adult Disability Payment draft regulations state: "A practitioner is suitably qualified to carry out an assessment of an individual if they have been employed for a cumulative period of at least two years, in the direct provision to individuals of health care or social care services." This suggests that individuals in the health and social care sector who have limited experience in disability can carry out consultations for Adult Disability Payment. We posit that this regulation should be strengthened to ensure that only [practitioners] who have the necessary specialist experience and knowledge are able to make judgements with regards to a disabled person's right to financial assistance.

Q24

  • Paragraph 80 - Will there be two appeals, as happens under Personal Independence Payment, one for entitlement and one for recoverability. What is the equivalent law for s71 SSA Act?
  • Paragraph 86 - How are Scottish Ministers defining unjust?
  • Regulation 43(1)(a) refers to a reg X.
  • Paragraph 76. How will this light touch review date and guidance be set for people with fluctuating conditions? Seizures may reduce during certain periods of time but the risk of seizures and associated effects are always present.
  • Paragraph 77. iv How will this work if there are minor differences between ADP and PIP (i.e., changes in descriptors and interpretation as outlined in Schedule 1).
  • vii How will Scottish Ministers ensure any overpayment sought by the DWP is done in a fair and dignified way given the client is now supported by Social Security Scotland.
  • Paragraph 80. Will there be two appeals - as happens under PIP, one for entitlement and one for recoverability. What is the equivalent law for s71 SSA Act?
  • Paragraph 84. This is unfair, payments should be backdated to date of application not when Scottish Ministers become aware of the error.
  • Paragraph 86. How are Scottish Ministers defining unjust?
  • Reg 43(1)(a) refers to a reg X.

Q26

  • Paragraph 89 - How will extensions to this time limit be managed?
  • Paragraph 90 - Will Short Term Assistance still be applied after the 56 days?
  • Paragraph 77c - This appears to duplicate rather than provide a vice versa scenario.
  • Regulation 39 suggests that a DWA must be done after the end of an award period where the award has been set by Social Security Scotland, but not when an award has been set by a Tribunal.
  • This regulation is worded very differently from the equivalent regulation for child disability payment (Reg 26 draft DACYP Regs).
  • We understand that it may be necessary for Social Security Scotland to collect additional information and that this may take some time. However, the Scottish Government should consider whether it is possible to reduce the period specified in regulation 44(2).

Q28

  • No specific changes.

Q30

  • Reg 46(5)(b) is not clear in meaning and needs reworded. The same applies for 47(2).
  • In Regulation 46(5)(a)(ii) the phrase 'an assumption which proves to be wrong', and in (b) the phrase 'a new determination not being made after an assumption on the basis of which an earlier decision was made has proved to be wrong' could both be clarified to make their intent clear.

Schedule 1

  • Mobility Activity 1, Descriptors c, d and f - this was noted to be the same wording used in an attempted amendment to Personal Independence Payment mobility regulations, but which was subsequently declared unlawful and discriminatory. It was recommended that the wording needed to be changed to reflect this.
  • Assistance dogs are now used for wider things than sensory impairments and so this definition in part 48 needs to be amended to be more inclusive.
  • an 'inability to take nutrition due to psychological distress' descriptor should be added to the taking nutrition daily activity.
  • "Basic verbal information" needs to include visual and tactile languages such as British Sign Language (BSL) and tactile BSL.
  • "Communication support" - needs a more expansive definition of what this can mean.
  • "Cook" means heat food at or above waist height - should be altered to be prepare and heat. Disabled people should be supported to enjoy a full range of food preparation.
  • recommend that the social engagement activity is amended to include maintaining relationships. This would make it clear that the activity should take into account the need to be able to build social networks in a long term and meaningful sense.
  • recommend that reading be amended to "read and act on". At present if a [client] with a learning disability reads and understands the letter they have been sent then they get zero points. This is despite the fact that there may be a disconnect in them then actually acting on it. We feel that the inclusion of "act on" will ensure that the ability to read is tested in a more meaningful sense.
  • Mobility Activity 1, Descriptor 1(b) - 'Needs the presence or prompting of another person to be able to undertake any journey to avoid overwhelming psychological distress to the individual', this represents a departure from the established scope of this activity under the Personal Independence Payment regulations that may disadvantage claimants. It was also considered to treat claimants unfairly in terms of scores awarded compared to those satisfying descriptors 1d or 1f.
  • Mobility Activity 1, Descriptor 1(e) - the change here is more restrictive than the current Personal Independence Payment descriptor. Whilst the Department for Work and Pensions' interpretation is that if a [client] can leave the house once during the day descriptor 1e cannot be satisfied, this is not settled law. It remains arguable that the correct approach is to apply the Upper Tribunal decision TR v SSWP (PIP) [2015] UKUT 623 (AAC), reported as [2016] AACR 23. It is clear that the policy intent is to incorporate the ratio of this decision (as demonstrated by the inclusion of Reg 9(2)(a)).
  • The new definition of 'follow the route of a journey' also risks restricting its scope compared to the current state of the caselaw, as it does not make explicit that the passive presence of another person can allow descriptors 1d and 1f to be awarded.
  • Engaging socially with other people face-to-face - expand sub-paragraph (c) to be clearer what nature of relationships are considered. For example, making it 'establish close personal relationships' would make it less likely that First-tier Tribunals will fall into error.
  • The definition of 'communication support' is not currently grammatically correct, and requires a further word after the first 'with' - for example 'people' or 'individuals'.
  • In the definition of 'prompting' inserting at the end 'whether or not given in the physical presence of the individual' would make the definition clearer.
  • Replace 'and' with 'or' in the definitions of 'dress and undress' and 'toilet needs'.
  • In the definition of 'assistance' insert 'with part but not all of a task' after the word 'intervention.
  • In the definition of 'supervision' insert at the end 'whether or not that risk directly results from carrying out the activity in question'.
  • To an "acceptable standard" - Acceptable standard should also be defined on the basis of the claimant's ability to undertake activities when they wish. More consideration could be given to the claimant's acceptable standard and enjoyment of life, which their disability prevents them from doing to an acceptable standard.
  • "basic written information" - "dares"? Should this read "dates"? Also consider confirming that making guesses is not reading to an acceptable standard. Consideration should also be given to the fact that in general, people without disabilities can read and understand signs "instantaneously".
  • "communication support" - Consider updating the interpretation section to read "and could include a friend or family member" or "does not exclude a friend or family member".
  • "complex budgeting decisions" and "simple budgeting decisions" - Could a definition of simple budgeting decisions be included and consideration of whether the individual has sufficient understanding of the outcome and implications to take a decision based on it?
  • "engage socially" or "engaging with others face to face" – it was suggested that this should mean more than an ability to engage with people known to the claimant (family and existing friends), or with whom they need to engage with for a limited purpose such as health care professionals or a tribunal panel. Also, that this engaging socially must be to an acceptable standard and as often as is reasonably required.
  • "monitor a health condition" - it was suggested there was a missed opportunity to recognise the supervision and monitoring of the health condition specifically excluded under the therapy definition and thus only attracting 1 point in Activity 3.
  • Could the "therapy" definition be widened to include the supervision necessary in severe epilepsy cases? They felt this was an opportunity to recognise physical input from another person which goes beyond "supervision", and queried why there was more recognition for 3.5 hours of "therapy" per week than for continuous monitoring of a health condition by another person and/or intervention by another person in severe circumstances (status epilepticus) to administer emergency medication.
  • "object and device" (Regulation 2(a) and 2(b)) - Due to the importance of diet, people with epilepsy and diabetes often use apps to record food intake and seizure activity. As such, it was requested that such apps should fall within the definition of "object and device", and to specifically include the apps as an aid in the regulations.
  • "prepare" and "simple meal" definitions with a proposal to also include a definition of "use of a microwave" in context of Activity 1. It could be added here that this means more than just heating up a ready meal in the microwave. Also, it was felt unfair that people were often not awarded the four points for supervision that their circumstances warrant because there was a belief that the use of a microwave eliminates the risk of harm, but people with epilepsy are still at risk of scalds and burns should they lose awareness of their surroundings or have an absence, a cluster of absences or a tonic clonic seizure while using a microwave.
  • "safety" - This includes "consideration of the likelihood and severity of consequences of the harm". For epilepsy claimants this is often misapplied. The word likelihood here could be given a definition in the interpretation section to include the case of RJ & others v SSWP - "An assessment that an activity cannot be carried out safely does not require that the occurrence of harm is "more likely than not"" (at para 56).
  • "simple meal" - there is an opportunity here to clarify the law and rule out snacks, sandwiches and ready meals.
  • "social support" - there could be added to the interpretation section "and can include friends or family" or "does not exclude friends or family" where a friend or family member is experienced or the best person to provide that support.
  • "take nutrition" - The interpretation section could be amended to ensure it is recognised that points can be awarded for needing prompting to eat a sufficient quantity of food.
  • "therapy" - Why is managing therapy given more points than monitoring a health condition in order to take emergency remedial action for a [client] to save their life? "Therapy" can mean engagement with other people if recommended by a health care professional so this would score more than continuous monitoring of an epileptic health condition, with the possibility of having to administer lifesaving medication. Could the points for Activity 3(b) be upgraded to two points? It is this one point which is rendered otiose and often leaves our service users one point away from a standard daily living award. Our experience is that this descriptor is rarely awarded at the initial stages, even when the client has advised in their claim form, they are prescribed emergency rescue medication and a protocol is in place.
  • "toilet needs" - Does (a) include getting a [client] to the toilet themselves after a seizure? Many [clients] with epilepsy have sudden bladder/bowel urgency directly following a seizure but need assistance to get to the toilet as they can be very confused and disorientated. This scenario could be made clear in the interpretation section as falling under the "toilet needs" interpretation.
  • The word "likelihood" could be given a definition in the interpretation section to include "likelihood does not have to mean more often than not". Otherwise, it was felt that [clients] could face a misunderstanding of the law by decision makers.
  • Fatigue - consideration should be given to fatigue stemming from a medical condition. The interpretation section should have a definition of fatigue.
  • Dressing and undressing - the 'bed' is not regarded as an aid, yet non-disabled people would not normally use the bed as a means to dress or undress.
  • Planning and following Journeys - The 'Sat Nav' is not regarded as an aid and some people with mental health conditions cannot remember a route and thus use the sat nav or mobile to get to their destination.
  • Moving around - There appears to be no recognition of the effort needed to stand and move to a certain distance. (such as 'out of breath, impact from pain and 'bravado').
  • Interpretation section - give more consideration to this section so that the law can be clarified and confirmed, without needing to amend the Activities and Descriptors. Comprehensive guidelines whilst welcomed, are often not considered law and not given appropriate weight by decision makers.
  • We note that the wording of descriptors 1c, 1d, and 1f in part 4 of schedule 1 apparently derive from what was regulation 2(4) of the Social Security (Personal Independence Payment) (Amendment) Regulations 2017. That regulation sought to introduce the phrase "for reasons other than psychological distress" into the descriptors for three of the mobility activities. However, the regulation was quashed following judicial review proceedings (RF v Secretary of State for Work and Pensions [2017] EWHC 3375 (Admin)), in which we intervened. The court found that the phrase 'for reasons other than psychological distress' was discriminatory in that it drew an 'unprincipled distinction' between different categories of disabled person, unconnected to their level of need or their level of functional impairment. The court also concluded that such discrimination could not be objectively justified. As a result, PIP continues to be awarded on the basis of the descriptors in the original legislation (Social Security (Personal Independence Payment) Regulations 2013 (SI 2013 No.377). However, as noted the phrase at issue in that case is found in three descriptors (1c, 1d, and 1f) in part 4 of schedule 1 of these draft regulations.

Schedule 2

  • Regulation 50 - It was not clear what this was aiming to achieve or the reasons for this.
  • Perceived inconsistency between Regulations 17 and 50 – It was noted that Regulation 17 made provision to allow people in the armed forces who were abroad on duty to be treated as being in the UK so as to allow them to apply, but Regulation 50 then excluded anyone who has previously paid National Insurance.

Other

  • Descriptors for Mobility Activity 1: "Planning and following journeys" should urgently be redrafted to remove the exclusion of psychological distress as a means to gain points in descriptors (c), (d) and (f). The associated PIP descriptors were found unlawful and in contravention of international human rights law.

Below are examples of areas where existing caselaw has not been fully captured in the current draft Regulations:

  • Regulation 6(4)(b) - Caselaw (PS v SSWP (PIP) [2016] UKUT 326 (AAC)) has established, for PIP, that the pain experience when you undertake an activity is one factor that should be taken into account when considering if the activity can be done to an acceptable standard. If the policy intent in Scotland matches this then Reg 4(6)(b) could specify that pain and distress are amongst the impacts to be considered.
  • Reg 12(b) - Caselaw (BM v SSWP (PI P) [2017] UKUT 486 (AAC)) has found that for the equivalent regulation in PIP (Reg 14(b) SI 2013/377) must be constructed as 'any day of the award'. In the interests of clarity, and to ensure the policy intent is met, this regulation could be redrafted in line with caselaw.

Contact

Email: Matthew.Duff@gov.scot

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